November 15, 2006

"Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete floor or slab; denied any human contact; fed nothing but 'nutri-loaf;' and given just a modicum of toilet papers - four squares - only a few times. Although this might sound like a stay at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002..."

But, but, but, this isn't punishment, ergo it isn't cruel and unusual punishment. It's therapy, it's treatment, in the best liberal tradition. They just happened to get the B.F. Skinner treatment instead of the R.D. Laing treatment. But it's all treatment.

The treatment of the prisoner certainly sounds inhumane. Whether it was deserved or necessary is a question I'd need more information to answer.

But in any case, it certainly isn't comparable to the gulags of the 30s. A prisoner entering the gulag system in 1931 only had about a fifty-fifty chance of surviving to 1940. Get rid of the toilet and medical care, cut back heavily on the nutri-loaf, and replace the isolation with sixteen hours a day of hard labor in inadequate clothing at sub-freezing temperatures and you're getting close to gulag territory. It helps if the person's innocent too, of course.

Thank you, Revenant. I, for one, am extremely tired of seeing words like gulag, fascism, and nazi thrown around with little or no historical perspective, or little attachment to the reality those words represent. We can argue the efficacy or humanity of the treatment described, but, PLEASE, let's stop with this asinine, inaccurate appeal to emotion through the misuse of terms that describe real events, real people, and stark evils beyond some guy getting shorted on toilet paper.

"The treatment of the prisoner certainly sounds inhumane. Whether it was deserved or necessary is a question I'd need more information to answer."

A prisoner doesn't land in Supermax for writing bad checks. These facilities -- very expensive to build and operate -- are reserved for inmates demonstrably violent and dangerous to other prisoners and staff. Any refusal to abide by rules, even seemingly minor ones like remaining visible to guards, could open the way to further violence.

I'm about as "law and order" as they come, but Supermax prisons tend to disturb me. I grant this does not describe a Gulag, but, "not a Gulag" is not much of a standard. Do I feel sorry for the prisoners? Not as much as their victims. However, if the state is going to keep these people, they can do so with adequate clothing and hygiene. Beyond safety, there is not much point, besides cruelty.

If Nathan Gillis is this guy (1996), he was convicted of "dragging a female passerby into his apartment and twice forcibly sexually assaulting her while choking and blindfolding her." Gillis was convicted after a plea following "several days of trial, and after the complaining witness had been subjected to a complete cross-examination taking most of a day. Police witnesses and others also testified before Gillis entered his plea, which stopped the trial."

The circuit court sentenced Gillis to twelve years in the Wisconsin state prison system on the two counts of sexual assault and the charge of recklessly endangering safety. The circuit court imposed 26 years' probation on the kidnapping and false imprisonment charges, concurrent with the prison sentences."

If so, I am not sure I care much at all about his complaints. He should be glad he avoided the death penalty. Some humans can only be treated as animals before they repsond to controls; they are pure evil, and I am not sure they deserve much beyond a cot and 3 hots.

"what is deserved is that this inmate is let loose someday, sick as a dog in a cage, and he has to live among you...and he lives in fear of your minds and you live in fear of what you helped create."---hdhouse

The Death Penalty is the solution to all that. It would certainly cut down on the number of abuses.

what is evident here is that the idea of prison was to prevent or at least make a dent in repeats after release. that seems to have gone by the board completely. ok. that's your solution and you have been the majority for a while. so be it. i don't like it, but majority rules.

what if, though, just what if, you don't have a "lifer" but someone with a sentence that permits return to society. just what if these measures take a sociopath to the next level...there was no evidence of an attempt to interdict his issues...just more dog in cage punishment.

if you have visited a gulag site (and i bet not one person here has besides me) you would know 2 things:

1. it didn't work2. it increased the resolve of those who survived

i'm concerned that there are those among us who think that a prodding stick helps things.

The problem is, for people that committed crimes like murder and rape, there is nothing that works. Many if not most of these people are sociopaths. they have no consciences and cannot respond to anything but external control. Rehabilitation requires that the inmate has insight, empathy, and can see other people as more than mere blocks of wood to be manipulated for their gain. Sociopaths lack this capacity, and it cannot be learned.

When dealing with sociopaths, the only workable alternative is permanent segregation from society for its protection.

"i'm concerned that there are those among us who think that a prodding stick helps things.

Indeed. What we have here is a failure to communicate.

All we need is extensive, endless one on one therapy to help the inmate deal with the innate injustices dealt him by life in a hyper-exploiting capitalistic warmongering environmentally despoiling nation with far too much heteronormality but not enough sex.

Afterwards we can send him to Swarthmore to pass his time away wishfully drawing sexual acts with appropriate slogans on the sidewalks with pastel chalk.

Just make sure your daughters are at other schools...or not unfortunate enough to be walking by the perp's apartment at the end of his day.

In his case, it appears that stage one was continued because of very bad, but possibly unrelatedbehavior—smearing blood and feces around his cell. The defendants say such behavior is related to the rule because guards cannot see through a feces-covered window.

He didn't like to be watched, apparently - and that triggered the initial isolation, and the continued isolation. He filed a civil lawsuit against the prison system, alleging constitutional violations - among other things the cell was "intolerably cold" at 70 degrees, and the suicide-resistant paper medical gown-type smock constituted being left humiliatingly 'naked' - and also that being segregated from the general population made him suicidal.

"He didn't like to be watched, apparently - and that triggered the initial isolation, and the continued isolation.

Obviously the presence of prison guards exacerbated the situation. It's time to establish a timeline for redeploying the guards so the prisoner can enter therapy-land, and just like that, the problem will go away.

We're creating more violent criminals faster than we can lock them up. U.S. out of the U.S.

hdhouse: The idea of prison was to prevent or at least make a dent in repeats after release

Yes, it was (and still is). Works for some. Doesn't work for others. Long track record of attempting exactly that demonstrates failure and success rate.

So, the question is, what to do with the incorrigibles?

As for the specific case, my first instinct is to be appalled by the response to his transgression of the rules.

reader_iam I'm always very interested in anything you have to say, and would like reading your thoughts, whether or not the rest of the comments go off on a tangent that reminiscent of monkeys at a zoo throwing feces at each other. (I'm undoubtedly as guilty as the next commenter for having done so on occasion.)

Not everyone agrees that the purpose of prison is rehabilitation. There are other theories as well: punishment, deterrence, vengeance. There is also the simple idea of keeping the bad guys away from the rest of us.

All this guy had to do to keep out of his current situation is 1) show his head and 2) not smear feces and blood in his cell. It's not that complicated.

He's not in a gulag, where he is forced to cut chunks of his own flesh from his thighs and eat them so he doesn't starve. It's a prison, where he was put for committing a crime.

I suggest you read "The Gulag Archipelago" to understand what real gulag is.

"Not everyone agrees that the purpose of prison is rehabilitation. There are other theories as well: punishment, deterrence, vengeance. There is also the simple idea of keeping the bad guys away from the rest of us."

Wow. I'm stunned and saddened. Punishment, deterrence, and rehab are necessary and noble qualities for a society to strive for - but, vengence? There's not an ounce of good that can come of it.

As I understand deterrence theory, there is specific deterrence (deterring the inmate from recidivism upon release) and general deterrence. The latter is aimed at the general population of potential offenders, which is presumed to weigh the risks and benefits of criminal activity. Making a term of incarceration longer or harsher theoretically has some effect on the decision whether to engage in criminal activity. So "retribution" or "vengeance" does have an underlying deterrent purpose in that it advertises society's willingness to punish future behavior.

But the opinion in this case makes clear that the purpose of the restrictions imposed on Mr. Gillis was purely related to behavior modification within the prison system and not punishment for the underlying conviction. So I don't think there's much point in arguing over whether the harsh treatment fits the crime.

I'm afraid this is another case in which the public debate is going to focus on the wrong thing--whether inmates who committed especially barbaric crimes should be subject to especially harsh conditions of confinement (although not so harsh as to warrant comparison to the Gulag, as others have noted). The focus should be on whether deprivations of this nature are acceptable as a means to manage prisoner behavior.

In Hudson v. McMillian, Justice Thomas argued that "[f]or generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration." Hudson, 503 U.S. at 19 (Thomas, dissenting). Moreover, argued Thomas, the Framers "simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment[,] ... [and] historically, the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life ... [It] was not until 1976 - 185 years after the Eighth Amendment was adopted - that th[e] [Supreme] Court first applied it to a prisoner's complaint about a deprivation suffered in prison[,] [in] Estelle v. Gamble." Id. at 19-20.

Setting aside for one moment the argument that stare decisis may well form a part of the original understanding of Article III's grant of "the judicial power," the Constitution trumps all other authority. The most venerable of traditions, the most clear line of precedent, the most studious and sensible appeal to reason: all are inadequate to override the plain command of the Constitution. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1 (Scalia, dissenting) ("tradition [can] giv[e] content only to ambiguous constitutional text; no tradition can supersede the Constitution"). To be sure, when we dive in murkier waters, where the command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent (the latter being tradition given sharper teeth). Nevertheless, I find it hard to believe that it is logical - even given the impressive argument assembled by Justice Thomas in Hudson - that the Eighth Amendment's command should reach the ability of the legislature to delineate crimes and punishments in the abstract, and the ability of the judiciary to impose those punishments in the particular, yet does not reach the conduct of the executive branch in carrying out the sentence.

In the instant case, as I understand it, the deprivations that the prisoner complains of are of his own authorship. He refused to play by the rules, and it is a legitimate function of prisons to punish those who are disruptive, a fortiori in a facility specifically "designed to house recalcitrant inmates," slip op. at 2. However, I find myself unable to rebut the Court's argument that "[t]o say [Gillis] could have avoided the program altogether by not breaking the rules in the first place would be to severely limit valid Eighth Amendment claims." Slip op. at 12. Although prison authorities should be given latitude to make, enforce and punish violations of rules - latitude that is at its apogee in a facility of this type, given the characteristics of the inmates there incarcerated - that latitude runs out past a certain point.

Whether that latitude ran out in this case seems to depend upon a question of facts that are disputed. Slip op. at 4-5. Since "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (accord Fed.R.Civ.P. 56(c)), the district court should not have granted summary judgment, and the Court of Appeals is therefore entirely correct to vacate that judgement.

We are assuming the deprivations are punishment. They are that, in a way, but they may also be protective measures.

A man put in solitary has a lot of time on his hands to consider mischief to himself or others. Taking away his clothing, bedding, and limiting the vital things to a minimum also removes any chance of self-violence or planned violence against the guards who would have to at some point open that cell.

In Hudson v. McMillian, Justice Thomas argued that "[f]or generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration." Hudson, 503 U.S. at 19 (Thomas, dissenting). Moreover, argued Thomas, the Framers "simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment[,] ... [and] historically, the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life ... [It] was not until 1976 - 185 years after the Eighth Amendment was adopted - that th[e] [Supreme] Court first applied it to a prisoner's complaint about a deprivation suffered in prison[,] [in] Estelle v. Gamble." Id. at 19-20.

Setting aside for one moment the argument that stare decisis may well form a part of the original understanding of Article III's grant of "the judicial power," the Constitution trumps all other authority. The most venerable of traditions, the most clear line of precedent, the most studious and sensible appeal to reason: all are inadequate to override the plain command of the Constitution. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1 (Scalia, dissenting) ("tradition [can] giv[e] content only to ambiguous constitutional text; no tradition can supersede the Constitution"). To be sure, when we dive in murkier waters, where the command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent (the latter being tradition given sharper teeth). Nevertheless, I find it hard to believe that it is logical - even given the impressive argument assembled by Justice Thomas in Hudson - that the Eighth Amendment's command should reach the ability of the legislature to delineate crimes and punishments in the abstract, and the ability of the judiciary to impose those punishments in the particular, yet does not reach the conduct of the executive branch in carrying out the sentence.

In the instant case, as I understand it, the deprivations that the prisoner complains of are of his own authorship. He refused to play by the rules, and it is a legitimate function of prisons to punish those who are disruptive, a fortiori in a facility specifically "designed to house recalcitrant inmates," slip op. at 2. However, I find myself unable to rebut the Court's argument that "[t]o say [Gillis] could have avoided the program altogether by not breaking the rules in the first place would be to severely limit valid Eighth Amendment claims." Slip op. at 12. Although prison authorities should be given latitude to make, enforce and punish violations of rules - latitude that is at its apogee in a facility of this type, given the characteristics of the inmates there incarcerated - that latitude runs out past a certain point.

Whether that latitude ran out in this case seems to depend upon a question of facts that are disputed. Slip op. at 4-5. Since "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (accord Fed.R.Civ.P. 56(c)), the district court should not have granted summary judgment, and the Court of Appeals is therefore entirely correct to vacate that judgement.

I'm not entirely sure I understand your question, but I take it to ask why the nature of the underlying crime isn't relevant to the question whether particular conditions of confinement are too harsh.

Administrators of the penal system lack authority to decide an inmate's sentence. That role is left in our system to juries and judges. Once the sentence is announced, the role of the penal system is to carry it out, with the aid of whatever carrots and sticks are necessary to manage the prison population. There's no question that manipulating the conditions of confinement within reasonable bounds is appropriate to run prisons efficiently, and this is not--or should not be--a constitutional issue.

What is not appropriate, however, is for a corrections official to take it upon himself to impose special hardships on prisoners based upon such official's opinion of the underlying conviction. That would be siphoning power away from judges and juries (and the protections of our criminal process) and placing such power in the hands of unaccountable prison administrators.

Thus, while we obviously have less sympathy for an inmate convicted of an especially nasty crime, this is not a legitimate justification for treating a particular prisoner more harshly than necessary to ensure compliance with reasonable standards necessary for running the prison system.

I understand why the jailer is not to decide these particulars, but why not the judge and jury?

That is, I can see why our society would want to maintain decent treatment of all prisoners, but I can also see why a Supermax facility could be, with its restrictions, privations, and endless rules, be part of the sentence prescribed for sociopaths and barbarians.

Nasty crimes by evil people deserve harsher treatment. Said differently, minor nonviolent criminals do not deserve to be treated as badly as a child murderer, or jailed alongside him.

As it is, the judge/jury sentence someone to "go here for some length of time". They don't as I understand it say go there and God help you because you might get worse than the other guy.

Doesn't it stand to reason that the acts commited in prison by this fellow might lead a reasonable person to conclude that there is something more going on in that fellow's noggin than rational thought? Could a reasonable person, in observing this, conclude that the lights are on but nobody is home?

I guess we could institute the death penalty for just about anything but that has proven over and over and over not to deter the original crime. There is no evidence whatsoever that the prospect of harsh sentences and punishments keeps violent people from doing violent things.

We keep locking people away and horrific costs in money and lives adn to what end?

Not saying at all that this guy shouldn't be punched in the nose every hour on the hour for the duration of his sentence..it would be fine with me...but his sentence is finite and then what do you have when he gets out?

gophermomeh: RE: the revenge, punishment, deterrence, rehab debate. I actually remember what I learned in my Philosophy 101 class 25 years ago. These issues have been debated for a long time. What is the purpose of putting criminals in prison? Some people do think it's revenge.

Me, I just want them locked up so they don't hurt anyone else again. Throw away the key if necessary. I'm happy to let God take care of any revenge.

hdhouse: I agree that this guy obviously needs psychiatric help. He may or may not be getting it, or much of it. That said, it seems to me that the law is pretty specific about not forcing people who refuse treatment to get it.

tjl said: These facilities -- very expensive to build and operate -- are reserved for inmates demonstrably violent and dangerous to other prisoners and staff. Any refusal to abide by rules, even seemingly minor ones like remaining visible to guards, could open the way to further violence.

Yes. Weird that this has to be explained.

If this prisoner was indeed the individual who repeatedly raped that woman, he should have been given life with no parole. I am happy to pay for more prisons to house people like this, who forfeited their chance to take part in "polite" society.

The discomforts of his cell are nothing compared to what that poor woman went through at his hands.

Punishment, deterrence, and rehab are necessary and noble qualities for a society to strive for - but, vengence? There's not an ounce of good that can come of it.

Sure there is -- seeing evil people suffer for their crimes makes people, particularly the perpetrator's victims, feel good. This pleasure serves a vital role in society, as it encourages people to support the punishment of wrongdoers, even when they themselves are not the ones who were wronged.

class-factotum: I think that the purpose of prison is primarily that of punishment and deterance. I have no problem separating them from the rest of society. And as far as a vengeful God goes, it's no my God and good luck on that.

revenant: revenge makes people feel good? All I know is that I don't feel good when I'm feeling vengeful, quite the opposite, actually. When I'm looking for revenge, I'm only looking to harm myself.

and internet-ronin: thanks. I'll bet that the one's that have foregiven are the ones that are truly at peace.

I don't think that "revenge" is a legitimate function of the criminal justice system. But revenge is just a small, emotionally-driven subset of "retribution," which I absolutely believe is required to create justice.

The simple fact is that a key component of most peoples' sense of fairness and justice is that as one sows, so shall one reap. He who causes suffering, must be made to suffer. He who causes pain, must feel pain. A criminal justice system that was 100% effective at rehabilitating murderers and rapists but caused them to suffer not at all for their crimes would still be manifestly unjust to most people.

All I know is that I don't feel good when I'm feeling vengeful, quite the opposite, actually

When you are "feeling vengeful" you are feeling frustration at vengeance not achieved. If you're normal you feel better once it is.

Simple thought experiment: someone steals the antique pocketwatch your father had given you, and which you had planned to give to your son. Do you feel better (a) while the thief's in prison or (b) after he gets out on parole?

gophermomeh: Where were we before being so rudely interrupted? Ah yes, "forgiveness" was not considered in any case. (I doubt it will ever be.) I'm sorry if I gave you the impression that it was. But enough about that. (It was obviously a mistake to bring it up.)

In any event, one thing you said struck me, and that was being "at peace." As you can see, I started to respond a couple of times, but didn't like the way it came out. What I started thinking about was all the people I know who lost a child for any reason (illness, accident, mayhem) and I could only think of a couple who appeared to be genuinely "at peace" with the fact. Even when the deceased was 48 - always someone's "baby," if you know what I mean, and I think you do ;-)

What I started thinking about was all the people I know who lost a child for any reason (illness, accident, mayhem) and I could only think of a couple who appeared to be genuinely "at peace" with the fact.

Time helps bring that peace.Sometimes a person's religion or spiritual support makes the difference too.

One thing I have noticed: family members promised automatic "peace" or "relief" upon executing a killer often say that it just didn't come that easy and are disappointed. Society should quit making that false promise. Execute on its own strengths if we must, but on not the promise of peace or closure to the victims. It's rarely works out that way, and the ones who come out the healthiest seem to find other places of personal support than relying on the criminal justice system for peace of mind.